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FMG Law Blog Line

Archive for December, 2012

Beware If You Have Commissioned Employees in California – New Law Takes Effect in 2013

Posted on: December 27th, 2012

By: Brad Adler

For those employers that have operations in California, remember that California’s new commission contract law takes effect January 1, 2013.  Under State Law 1396, employers who pay commissions to their employees are required to enter into written commission agreements with them.  The agreement must describe the terms of the commission structure, including the method by which commissions will be calculated.  Employers must have employees sign the agreement and then provide a copy to each employee.  Employers also should note that, when a commission agreement expires for a current employee without being replaced by another agreement, the terms of the expired agreement will control.

Federal Judge Gives Green Light to “Show Me Your Papers”

Posted on: December 18th, 2012

By: Kelly Morrison
Last week, federal Judge Thomas Thrash signed an order authorizing the immediate enforcement of “show me your papers”— also known as Section 8 of Georgia’s controversial immigration law.  Section 8 allows law enforcement officials to verify the immigration status of criminal suspects who fail to produce proper identification.

The ruling was a result of the August decision by an Eleventh Circuit panel, which reversed Judge Thrash’s earlier decision, which placed a preliminary injunction on the practice.

Law enforcement officials have reacted cautiously to the ruling, stating that any changes in policy likely will wait until guidance is issued from the Attorney General’s office.

It is important to note that this decision does not resolve the lawsuit challenging several sections of the law, which is expected to last several more years.

NLRB Strikes Down Another Social Media Policy

Posted on: December 10th, 2012

By: David Cole
The NLRB has ruled that another social media policy is unlawful because it infringes on employees’ rights to engage in concerted activity.  This time, it looked at DISH Network’s social media policy, which stated that “you may not make disparaging or defamatory comments about DISH Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or their, products/services.”  Just as it did in the recent cases of Costco Wholesale Corp. and Karl Knauz Motors, Inc., the NLRB ruled that this policy unlawfully interfered with employees’ rights to engage in concerted activity by complaining about work conditions.  In addition, the policy banned employees from engaging in negative electronic discussion during “company time.” The NLRB ruled that this provision also was unlawful because it did not clearly convey to employees that solicitation can still occur during breaks and other non-working hours.

You may read the DISH Network Corp. decision here.  This is another reminder for employers to review their social media policies in light of these recent rulings.

Constructive Knowledge Defense Gains Steam

Posted on: December 5th, 2012

By: Marty Heller

With an ever increasing federal docket of FLSA claims, employers have been pushing for a defense based upon lack of knowledge of the unpaid overtime.  In the last month, this defense gained some important support.  In White v. Baptist Memorial Health Care Corp., 2012 WL 5392621 (6th Cir. Nov. 6, 2012), the Sixth Circuit precluded an employee from bringing an FLSA claim based upon working during meal breaks because the employee never recorded the time she worked during her breaks.  In this case, the employer had a policy which automatically deducted an unpaid meal break from an employee’s time if they worked six or more hours.  Importantly, the employees were paid if they had to work during their meal break, however, the employees were expected to record the time they spent working during a meal break in the employer’s “exception log.”

The Sixth Circuit ruled that employers are held to a “knew or should have known” standard for unpaid overtime arising out of working off the clock.  Here, although the plaintiff alleged she told her supervisors that she was working during her meal breaks, she did not inform them that she was not being compensated and she stopped recording the time on the Company’s exception log.

This case joins the Fifth, Eighth and Ninth Circuit rulings that employers are not liable for unpaid overtime that they are not aware of due to the employee failing to follow the employer’s established procedures for working off the clock.  The focus of these cases is the lack of knowledge.  At least one court within the Eleventh Circuit also has supported this constructive knowledge rule, but there is yet to be any ruling on the issue by the Eleventh Circuit Court of Appeals.  (See Chandra Lewis v. The Keiser School, Inc. 2012 WL 4854724 (S.D. Fla. Oct. 12, 2012)).